Virginia Lawyers Weekly VA Lawyers Weekly
Where an attorney had sexual relations with a client, this conduct violated Rule 1.7(a)(2) of the Virginia Rules of Professional Conduct.
Overview
After exchanging a series of explicit texts, appellant Brown and C.C. had sexual relations while Brown was representing her in a divorce case. M.C., C.C.’s husband, “sent his private investigator to the hotel to obtain evidence of the encounter.”
M.C. contacted Brown and demanded that he withdraw from representing C.C. The court granted Brown’s motion.
Brown was also representing C.C. in a criminal matter. He withdrew from that case as well.
“M.C. filed a complaint with the Virginia State Bar. Following the complaint, Virginia State Bar Investigator Lisa Marshall … investigated the allegations and prepared both a report and supplemental report of her investigation.
“In September 2021, the Sixth District Subcommittee of the Virginia State Bar found that Brown’s actions ‘constitute[d] misconduct’ and certified the matter to the Virginia State Bar Disciplinary Board, finding that Brown had violated Rules 1.7(a)(2) and 2.1.
“Brown answered the certification, denying that he violated either Rule and requested a three-judge panel pursuant to Code § 54.1-3935. …
“The circuit court found that Brown violated Rule 1.7(a)(2) but did not violate Rule 2.1. Its memorandum order contained a four-page, seventeen paragraph summary of the facts of the case.
“As a sanction, Brown received a public reprimand, with terms, requiring him to retake the Multistate Professional Responsibility Exam and complete 250 hours of community service. …
“Brown assigns error to (A) the circuit court’s finding that his conduct added additional or new ground for divorce, (B) the circuit court’s finding that he violated Rule 1.7(a)(2), and (C) the length and detail of the circuit court’s statement of facts.”
Grounds for divorce
“Brown first assigns error to the court’s finding that he created a new or additional ground for divorce in C.C.’s case. …
“As a threshold matter, we note that this is an attorney disciplinary matter, not a divorce case. Yet, because Brown argues that the circuit court’s finding influenced its conclusion that he violated Rule 1.7(a)(2), we address his argument. …
“Brown engaged in sexual relations with C.C., who was married at the time. This fact could have been pleaded by M.C. in the divorce case as a new ground charging adultery, in addition to the ground already alleged in his complaint. …
“[W]hile Brown was C.C.’s divorce lawyer, by his own conduct he created a scenario which could have been used to her legal and strategic detriment. Worse, he knew – or should have known – the possible consequences of his actions for the case in which he was responsible for zealously and professionally safeguarding the interests of a litigant who was in a vulnerable state given her mental health and substance abuse issues. …
“As a result, the circuit court’s finding correctly stated the possible legal consequences of Brown’s conduct for C.C.”
Rule 1.7(a)(2)
“Brown next assigns error to the circuit court’s finding that he violated Rule 1.7(a)(2). That Rule provides that ‘(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if … (2) there is significant risk that the representation of one or more clients will be materially limited … by a personal interest of the lawyer.’
“Rule 1.7(a)(2). Paragraph (b) sets forth the requirements for continuing representation with client consent. …
“Underpinning Rule 1.7(a)(2) is the lawyer’s duty of loyalty, and the understanding that when a lawyer’s personal interest conflicts with the interests of his client, that duty of loyalty is compromised. …
“The rule also ‘reflect[s] the fundamental fiduciary obligation of a lawyer not to exploit a client’s trust for the lawyer’s benefit, which implies that the lawyer should not abuse the client’s trust by taking sexual or emotional advantage of a client.’ Va. Legal Ethics Op. 1853 at *4.
“Because the attorney-client relationship is ‘inherently unequal’ a sexual relationship during representation ‘may provide an opportunity for the lawyer to exploit the client either emotionally, sexually, or financially.’”
Violation
“Brown argues that this Court has authorized sexual relationships with clients by rejecting a proposed rule which would have made all sexual conduct with clients a per se ethical violation. …
“We are entirely unpersuaded by that argument; it is fundamentally flawed both as a matter of law and logic. The rejection of a per se rule does not imply that such conduct is always permissible. …
“The record in this case is rife with examples of Brown’s personal and prurient interest in his client, which materially limited and weakened his representation of C.C. to her actual and potential detriment.
“The most obvious detriments were that by engaging in sexual relations with C.C., Brown made himself a fact witness in her divorce case, added a ground for divorce for M.C., and necessitated his own withdrawal as counsel in C.C.’s cases, leaving C.C. to represent herself in her divorce case.
“Woven throughout Brown’s explicit messages is legal advice, demonstrating that the fiduciary relationship was ongoing and significantly compromised.
“Most troubling is that a client with significant mental health and substance abuse issues was materially limited in her legal representation because her attorney prioritized his sexual lust over his responsibilities and the client’s best interests.
“This conduct by Brown is the antithesis of what is required in a professional relationship that requires the scrupulousness of a fiduciary.”
Memorandum order
“Brown assigns error to the length and specificity of the circuit court’s memorandum order. The Rules provide that a memorandum order must be issued following the disposition of a disciplinary matter. … That order must contain ‘a brief statement of the findings of fact’ made in the case. …
“The circuit court’s statement of facts, by necessity, summarized extensive contested criminal and domestic litigation, Brown’s representation of C.C. in four different matters over the course of three years, and the disturbing facts supporting the finding of misconduct.
“Brown argues that it was unnecessarily explicit and detailed in its inclusion of text messages. We disagree. The communications between Brown and C.C. directly support the circuit court’s misconduct finding and demonstrate the degradation of the attorney-client relationship. As a result, we affirm the circuit court on this assignment.”
Affirmed.
Brown v. Virginia State Bar, Ex Rel, Sixth District Committee, Record No. 220643; (Mann) May 4, 2023. From the Circuit Court of Spotsylvania County. (Steven C. McCallum, Chief Judge Designate, Jeanette A. Irby and Dontaé L. Bugg, Judges Designate). Christopher T. Holinger (Mary T. Morgan; Golightly Mulligan & Morgan, on briefs), for appellant. Sheri H. Kelly, Assistant Attorney General (Jason S. Miyares, Attorney General of Virginia; Steven G. Popps, Deputy Attorney General; Jacqueline C. Hedblom, Senior Assistant Attorney General, on brief), for appellee. VLW 023-6-012, 21 pp.
